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San Jose Estate Law Blog

Modifying and invalidating a will

While studies have shown that less than half of American adults (in general) do not have a will, that does not mean that statistic holds true across all demographics. Indeed, older Americans seem to be more apt to take the advice of estate planning experts to heart. Information shared by Gallup shows that 68 percent of Americans over the age of 65 do indeed have a will. Yet even those that prepare their wills later on in their lives might still have plenty of time to change their attitudes towards the terms they disclosed therein. 

Divorce, a death in the family, or any other manner of events can cause one to rethink the provisions stipulated in their will. How, then, are they to modify their will in order to reflect their current desires? Per Section 6120 of the California Probate Code, if one creates a second or subsequent will that contradicts the terms of any earlier will (either in whole or in part), the law recognizes the subsequent will as having invalidated the first. If the subsequent will only contradicts certain aspects of the earlier one, those terms that are directly inconsistent with those of the earlier one are deemed valid, while all other points of the earlier will remain intact. 

Does your estate plan address digital assets?

When you think of estate planning, you might think of writing a will to determine who gets someone’s house or vacation property. However, it is important to remember the intangible aspects of your life that may be overlooked in your estate plan.

What to do with digital assets is a question you may not have asked in the past because they were less common to own. Today, as more of our lives move online, digital assets are increasingly important to address in your estate plan.

Understanding no-contest clauses

You may often be placed in a precarious position when you are party to the estate of a loved one in San Jose. If, for example, the terms of your family member or friend’s will are not what you anticipated (and you choose to challenge them), many might write off your actions as you simply being petty. Yet there may indeed be a number of valid reasons for you to challenge the terms of a will (such as the decedent promising you a certain asset or property during their life, yet that stipulation not being in their will). Many in your same position have come to us here at Temmerman, Cilley & Kohlmann LLP concerned that such a challenge will automatically invoke a will’s no-contest clause. 

No-contest clauses are stipulations placed in estate instruments that limit one’s interest in an estate if they choose to challenge the terms of the instrument. Oftentimes, a no-contest clause might disinherit you entirely if you object to the terms of the will. Yet no-contest clause enforceability has often been a topic of debate. Thus, the state has outlined when such clauses are actually enforceable. 

Is a nuncupative will legal?

Nuncupative wills are those that are spoken orally to another party. This typically occurs when a person is on their death bed and must provide instructions for the transfer of personal property to beneficiaries. In many cases, oral wills are not legally binding. However, they can be recognized by the court in some instances, provided the proper steps are followed. 

While not usually legally binding, oral wills are useful in clarifying the wishes of the deceased, especially when there are disputes among family members. Keep in mind that oral wills are not able to overrule any estate plans that were created previously. This is true even when a will was created many years prior, which might call its accuracy into question. They can help resolve disputes if a court is willing to hear evidence provided orally. 

What are beneficiary designations?

When estate planning, you'll need to decide what to do with proceeds from retirement accounts and life insurance policies. In this case, beneficiary designations determine who receives these assets after you die. It's important to understand how beneficiary designations actually work to ensure your estate will be dispersed in the correct manner after you're gone. That's why The Balance offers the following information. 

When you open a retirement account or purchase a life insurance policy, you'll be asked to designate a beneficiary. At this point, you'll fill in a person's name and how much of the asset they will receive upon your death. You can also name backup heirs in the event the first choice is also deceased at the time of your death. It's important to review this information on a regular basis, especially if it's been a while since your first set up the account. 

Requirements for a valid will

Many California residents have an estate plan to ensure their belongings go to their family, friends and charities after they die. If you have a loved one who changed their will frequently, or shortly before they passed away, it may be unclear if the document reflects his or her wishes. At Temmerman, Cilley & Kohlmann, LLP we often assist clients who dispute the validity of a will.

FindLaw states that challenging a will is difficult. Most courts presume that the person who created the legal document was of sound body and mind. When contesting testamentary capacity, you must show that the individual did not understand the consequences of their actions.

Revocable and irrevocable trusts: What’s the difference?

Most high-asset couples already have a will in place, and several in California also have living trusts completed so that they can avoid the probate process, transferring assets sooner with smaller legal fees. If you haven’t set up a living trust, or know that your parents have one, you may not realize that living trusts can protect assets and their terms remain private information upon death (which probate does not).

Who should I pick to be my power of attorney?

A power of attorney is a representative you choose to handle financial and medical decisions should you become incapacitated. Making the right selection is crucial to ensure medical staff and family are fully aware of your decisions, while also making certain that these wishes are carried out appropriately. Very Well Health offers the following tips on how to choose the most suitable power of attorney. 

Being an effective communicator means you're able to convey information clearly and succinctly. This is especially important in an emergency medical situation, where decisions will need to be made rapidly as the patient's condition changes. Your power of attorney should be able to keep up with a quickly changing situation all while fielding questions from family and medical staff. The person will also need to be assertive when discussing your end-of-life plans with others. It can be intimidating to challenge medical staff, but it might be necessary if a doctor is suggesting a treatment goes against your wishes.

Defining the parent-child relationship

The inheritance rights of one's natural heirs through California's intestate succession guidelines have been detailed on this blog in the past. A decedent's children are entitled to a portion of their intestate estate if the children survive them. That is, of course, provided that they qualify as one's child under state law. 

Section 6450(a) of California's Probate Code states the obvious fact that one is child of their natural or biological parents (regardless of whether their parents were married). This entitles them to inherit assets through the state's intestate succession guidelines (again, regardless of their parents' marital status). Yet what happens if it is the other way around? Are there stipulations that must be met in order for a parent to qualify to inherit a child's assets? 

Challenging a will because of mental incapacity

As our parents and beloved family members age, it’s difficult to see their mental capacity decline. This can be problematic if the will was created or altered when the estate holder or testator was of diminished capacity. It can call the will into question, and the will may be challenged in court. 

When testamentary capacity is in question

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